The Alien Enemies Act first came into play this year by an order by President Trump on March 14 to deport several alleged members of the Venezuelan Tren de Aragua gang. On the morning of March 15 U.S. District Judge James Boasberg of the District of Columbia District Court ordered the flights to be halted. This led to five months of back and forth, including Boasberg considering declaring the government attorneys of contempt of court.

An Appellate court decision striking down the use of the Alien Enemies Act was issued on Sept 2.

The case and this decision: W.M.M.; F.G.M.; A.R.P., on their own behalf and on behalf of others similarly situated, Petitioners–Appellants v. Donald J. Trump et al.  United States Court of Appeals for the Fifth Circuit, Northern District of Texas No. 25-10534. 1:25-CV-59.

Excerpts from the majority (2-1) decision:

The Government contends “the AEA [Alien Enemies Act]  grants the President a near ‘unlimited’ authority to identify and countermand foreign invasions or predatory incursions.” In its view, it is not for the courts to question the President’s assertion that the actions of TdA members constitute an invasion or predatory incursion by a foreign government.

Our analysis leads us to GRANT a preliminary injunction to prevent removal because we find no invasion or predatory incursion, conclude on the current record that the updated notice satisfies due process, and REMAND for further proceedings.

[The majority examines the circumstances of the enactment of the Alien Enemies Act and finds the circumstances of the TdA deportation do not justify use of the Act. The majority does not address modern uses of the Act such as during WW2.]

The AEA was enacted at a time when France was using privateers to attack American shipping and two decades after Great Britain had used the Hessians, who were German mercenaries, as part of the army it sent to suppress the American Revolution.

For the AEA to apply, any current method of conducting hostilities suffices without showing it is in some manner comparable to an invasion or predatory incursion as understood in 1798.

Because we accept the President’s factual assertions, the question is whether this interconnectedness makes TdA’s activities in the United States attributable to the Venezuelan government….The AEA was enacted at a time when France was using privateers to attack American shipping and two decades after Great Britain had used the Hessians, who were German mercenaries, as part of the army it sent to suppress the American Revolution. Famously, it was a large contingent of Hessians who were surprised in Trenton when General Washington and his forces crossed the Delaware River on Christmas night 1776.

This factual finding concerning the danger posed by all TdA members is unreviewable by this court, but it is not finding facts that constitute an invasion or predatory incursion.

Due Process

The Supreme Court has instructed that in the context of the AEA, this means “‘detainees must receive notice that they are subject to removal under the Act within a reasonable time and in such a manner as will allow them to actually seek habeas relief’ before removal.” Id. at 1368 (quoting Trump v. J.G.G., 145 S. Ct. 1003, 1006 (2025) (per curiam)). “In order to ‘actually seek habeas relief,’ a detainee must have sufficient time and information to reasonably be able to contact counsel, file a petition, and pursue appropriate relief.” Id. The government conceded at oral argument that it had not responded to Petitioners’ evidence regarding the need for more than seven days’ notice. The undisputed evidence in this case is sufficient to show that seven days’ notice is not reasonably calculated, under all the circumstances, to afford detainees, especially those who are unrepresented, due process under the AEA. At least twenty-one days’ notice is required,

The Trump administration takes one more step to create a surveillance state, initially targeted against foreign-born persons. It is prudent to expect that an enhancement to ICE’s surveillance capabilities will be directed against international students and green card holders as much as against unauthorized persons.

On August 30, the administration signed a purchase order on behalf of ICE to acquire a user license for spyware designed by one of the top spyware companies, Paragon Solutions. The Biden administration made an initial commitment in late 2024, but held up the purchase due to concerns that it would be used unconstitutionally against residents of the United States. And there was also that foreign powers might gain access to the spyware’s use in the U.S. (Go here and here).

To go ahead with the purchase order, the administration had to close out a review of the pending purchase per the Executive Order 14093 (Prohibition on Use by the United States Government of Commercial Spyware That Poses Risks to National Security), effective March 27, 2023.

Nadine Farid Johnson is the policy director at the Knight First Amendment Institute at Columbia University. She posted on August 22 a critique of spyware, which includes concern that individuals have very weak legal recourse to their being victimized by spyware

“Being targeted by spyware affects victims, their families, their employers, and their communities. Unchecked, the use of this technology eliminates vital bulwarks against government power and abuse, degrading civic institutions and thwarting accountability.

Spyware introduces insecurity into digital ecosystems and encourages the exploitation of security vulnerabilities. For example, Pegasus, a suite of software from NSO Group, allows governments and other clients to hack individuals’ cell phones imperceptibly. The company’s program supplies clients with full access to infected devices, including the ability to view and download content, take photos, and record audio. Pegasus can be installed through a “zero-click” exploit, meaning a purchaser can deploy the software remotely and without relying on the targeted user to download it by clicking a link. In continually seeking to overcome security patches, spyware companies like NSO Group—which has admitted to employing a team to study Android devices and applications such as WhatsApp to identify vulnerabilities—undermine cyber defenses and trust.”

A federal district court decision today has bearing on a possible incursion into Chicago with military force. As we saw in Washington, these incursions give rise to violating constitutional constraints against unreasinable arrests and searches. one use of which is to grab unauthorized persons off the streets.

In Newsom v. Trump (N.D. Cal., Sept. 2, 2025), the U.S. District Court for the Northern District of California ruled that President Trump and Secretary of Defense Hegseth violated the Posse Comitatus Act by using the National Guard and Marines for domestic law enforcement during immigration enforcement actions in Los Angeles. “In short, Defendants violated the Posse Comitatus Act.”

Although protests in the city included isolated violence, the Court found there was no rebellion and local police were capable of maintaining order. The President, the Court said, cannot create a “national police force” under his personal command. The ruling enjoined further deployments and reaffirmed that civilian authorities—not the military—must enforce the law. “Because there is an ongoing risk that Defendants will act unlawfully and thereby injure Plaintiffs … the Court ENJOINS Defendants from violating the Act.”

On August 30, Chicago Mayor Brandon Johnson signed a “Protecting Chicago Initiative” executive order to counter potential federal enforcement in the city, as had occurred in Los Angeles and the District of Columbia. Largely symbolic, the EO basically condemns militarized deployment of Federal law enforcement, the military and the National Guard on the grounds of the city being a “hell hole” of crime.

In August, the federal surge of law enforcement in Washington, D.C. led to an increase in arrests. Most were for minor infractions and immigration-related offenses, not violent crimes. Nearly half were misdemeanors like public drinking or marijuana possession.

Here is the text content of Johnson’s Executive Order No. 2025-6:

EXECUTIVE ORDER NO. 2025-6

EXECUTIVE ORDER DENOUNCING ANY ATTEMPTS TO DEPLOY THE UNITED STATES ARMED FORCES AND/OR THE NATIONAL GUARD AND/OR MILITARIZED CIVIL IMMIGRATION ENFORCEMENT IN CHICAGO AND TO ESTABLISH THE PROTECTING CHICAGO INITIATIVE

Whereas, the City of Chicago affirms its commitment to public safety policies rooted in investments in violence prevention, education, economic opportunity, mental health supports, and constitutional policing and respect for civil and human rights for all; and

Whereas, federal law prohibits the use of the U.S. Military for domestic law enforcement except in extraordinary circumstances—which do not exist in Chicago. To the contrary, under the leadership of Mayor Brandon Johnson, the City has achieved historic reductions in violent crime. During the past year alone, Chicago has reduced homicides by more than 30%. Chicago’s increased investments in community violence intervention programs have reduced gun violence by almost 40%. Following the launch of the Robberies Task Force, robberies have decreased by 35% and vehicular hijackings have decreased by 49%; and

Whereas, the deployment of federal military forces in Chicago without the consent of local authorities undermines democratic norms, violates the City’s sovereignty, threatens civil liberties, and risks escalating violence rather than securing the peace; and

Whereas, the deployment of federal military forces and/or federal tactical units for civil immigration enforcement in Chicago exacerbates existing harms facing the City’s historically underserved residents and vulnerable populations, including Black and brown communities, unsheltered people, veterans, people who are formerly incarcerated, individuals experiencing poverty, and immigrant communities; and

Whereas, the City of Chicago remains committed to approaches that uphold civil rights, reinforce public safety through neighborhood investment, and respect the authority of local leadership; and

Whereas, the Chicago Police Department (“CPD”) is entrusted to enforce local and state law in the City of Chicago through locally controlled law enforcement agencies guided by professional standards and community trust; and

Whereas, the deployment of federal military forces on the streets of Chicago disregards CPD’s authority; and

Whereas, today more than one in five Chicago residents is an immigrant, with communities representing every corner of the globe, including more than half from Latin America, nearly a quarter from Asia, and significant populations from Africa, the Caribbean, and Europe, and with especially strong representation from Mexico, India, Poland, the Philippines, China, Nigeria, and Haiti, these communities continue to power Chicago’s cultural, economic, and civic life, reminding us that immigration is not a threat to be managed but a legacy to be honored and a strength to be protected; and

Whereas, the City of Chicago is a Welcoming City, and is committed to serving all residents with respect and dignity; now, therefore

I, BRANDON JOHNSON, Mayor of the City of Chicago, do hereby order, as follows:

Section 1. Chicago Rejects the Federal Militarization of Law Enforcement and Civil Immigration Enforcement

The City of Chicago Mayor Brandon Johnson demands that President Donald J. Trump and any agents acting under his authority stand down from any attempts to deploy the U.S. Armed Forces—including the National Guard—in Chicago. The City will pursue all available legal and legislative avenues to counter coordinated efforts from the federal government that violate the rights of the City and its residents, including the Constitutional rights to peacefully assemble and protest and the right to due process.

Consistent with local, state, and federal law, all City departments are prohibited from participating in any enforcement actions aimed at violating Chicagoan’s rights to peacefully assemble and protest.

Section 2. Establishing the Protecting Chicago Initiative

The City will establish the Protecting Chicago Initiative that will coordinate designated Departments’ work to promote the well-being and safeguard the rights of all Chicagoans in response to threats arising from the actions and inactions of the federal government. The Protecting Chicago Initiative’s work will include, but is not limited to:

(1) Making available clear and accessible information regarding:

(i) Residents’ rights when encountering potential federal immigration enforcement activities occurring at or near schools, hospitals, homeless shelters, places of worship and other sensitive locations. The Trump Administration rescinded long-standing policy that restricted immigration enforcement actions in designated sensitive areas, including schools, hospitals, and places of worship. As a result, residents now face the threat of federal immigration enforcement operations taking place when residents seek education, health care, or practice their faith; and

(ii) General information about how the federal government’s actions and inactions affect the rights and well-being of Chicago residents.

(2) Coordinating with designated Departments and agencies, community, business, philanthropic partners, and the faith community, to identify and address community needs resulting from the threats of federal law and immigration enforcement and military deployment, and from federal budget cuts that drastically reduce funding for vital public benefit programs, including health care, food assistance, shelter, housing supports, violence reduction and educational initiatives.

(3) Regularly submitting Freedom of Information Act (FOIA) requests to the U.S. Department of Homeland Security (DHS), including but not limited to Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), to obtain information related to federal immigration enforcement activity within the city. These requests will seek data on:

(i) The date, time, and location of enforcement actions;

(ii) The names of individuals arrested or detained;

(iii) The stated basis or alleged criminal conduct underlying such arrests or detentions.

(4) Cooperating with consular officers serving Chicagoans to document federal law enforcement activity and to ensure that residents receive access to know your rights materials.

Section 3. CPD will Remain a Locally Controlled Law Enforcement Agency Responsible for Enforcing State and Local Laws

The CPD shall remain a locally controlled law enforcement agency under the authority of the City of Chicago and Mayor Brandon Johnson. Consistent with the limitations prescribed by CPD policy and the Welcoming City Ordinance, Municipal Code of Chicago, § 2-173, and in accord with the Illinois TRUST Act, 5 ILCS 805/1 et seq., and the Illinois VOICES Act, 5 ILCS 825/1 et seq., no CPD personnel shall be assigned joint law enforcement patrols, arrest operations, or other law enforcement duties alongside federal law enforcement, or military personnel, or National Guard units engaging in civil immigration enforcement. Nothing in this Order prevents CPD members from engaging in lawful and appropriate law enforcement activity to address an immediate public safety concern. CPD may cooperate with federal law enforcement agencies consistent with applicable law and existing intergovernmental agreements.

Pursuant to CPD policy and operational requirements, all sworn CPD members, when engaged in any law enforcement, crowd-management, or public-safety operations, will wear Department-authorized uniforms or approved outer garments that readily identify them as a CPD officer. This requirement ensures that residents of the City of Chicago can readily distinguish CPD officers from federal law enforcement agents or members of the United States Armed Forces.

Section 4. In the Interests of Public Safety and Accountability, Federal Law Enforcement Operating in Chicago Should Comply with CPD Policy and Operational Requirements Related to Masks, Body Cameras, and Officer Identification

Pursuant to CPD Policy and operational requirements, CPD officers are prohibited from intentionally disguising or concealing their identities from the public by wearing any mask, covering, or disguise while performing their official duties. CPD officers may wear protective equipment (such as medical masks, riot helmets, or respirators) as required for health or safety reasons; however, officers may not use such equipment for the purpose of concealing identity. All other law enforcement officers, including federal agents, as well as members of the military operating in Chicago, are urged to adhere to these requirements to protect public safety and promote accountability.

Pursuant to CPD Policy and operational requirements and in accord with the Illinois Officer-Worn Body Camera Act, 50 ILCS 706/1, et seq, CPD officers assigned to conduct patrol or field duties wear body cameras and activate their cameras during all law enforcement-related activities during which the officer is interacting with a member of the general public. All other law enforcement officers, including federal agents, as well as members of the military operating in Chicago are urged to adhere to these requirements to protect public safety and promote accountability.

Pursuant to CPD policy and operational requirements, CPD officers must, when requested, correctly identify themselves by providing their rank, name, and star number (or employee number for civilian members) to any member of the public. To protect public safety and promote accountability, federal agents and members of the military operating in Chicago are urged to at all times when interacting with Chicago residents display identifying information in a clearly visible fashion, including the name of the federal agency, last name, and badge number of the federal law enforcement officer, or the armed forces member’s last name and rank, respectively.

Section 5. This Executive Order does not prohibit any undercover or covert law enforcement officers, acting pursuant to lawful orders, from concealing their identities in the performance of their duties.

Section 6. This Executive Order shall take effect upon its execution and filing with the City Clerk.